Cervi v. State

• Decision Date: 29 September 1981
• Docket Number: No. 37316,37316
• Citation: 248 Ga. 325,282 S.E.2d 629
• Parties: CERVI v. The STATE.
• Court: Georgia Supreme Court

Page 629

282 S.E.2d 629

248 Ga. 325

CERVI v. The STATE.

No. 37316.

Supreme Court of Georgia.

Sept. 29, 1981.

[248 Ga. 334] O. Torbitt Ivey, Jr., Ivey & Associates, P.A., Augusta, for Michael Albert Cervi.

Kenneth E. Goolsby, Dist. Atty., Toombs Judicial Circuit, Thomson, Arthur K. Bolton, Atty. Gen., Atlanta, for the State.

MARSHALL, Justice.

Michael Cervi was indicted for murder, kidnapping, armed robbery and motor vehicle theft. A jury found him guilty on all counts and sentenced him to death for the murder, kidnapping with bodily injury and armed robbery. A seven year sentence was imposed for motor vehicle theft.

Cervi was an enlisted man in the U. S. Navy. After being turned down for leave, he and a shipmate, Robert Wilson, decided to take an "unauthorized leave." The pair left Charleston, South Carolina, hitchhiking. Outside Columbia, S. C., they were given a ride by Dr. Kenneth Lawrence, who was on his way to Atlanta, Georgia. When the doctor stopped and went inside a fast food restaurant for dinner, Wilson and Cervi planned to steal his car. Just outside Augusta, Cervi took a .30.30 rifle out of his sea bag and ordered Dr. Lawrence to exit off the Interstate onto U.S. 278. The pair took 1. Enumerations of error 1, 2 and 3 contend that the verdict is contrary to law, contrary to the evidence and against the weight of the evidence. The appellant introduced no evidence at the guilt or innocence phase of the trial and, from a review of the trial transcript, the evidence amply supported the verdict and authorized a reasonable trier of fact to so find beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Tucker v. State, 244 Ga. 721(1), 261 S.E.2d 635 (1979). There is no merit in these enumerations of error.

ten $100 bills from Dr. Lawrence and proceeded to march him some 150 yards off the road into a wooded area where he was tied to a tree using his necktie. Wilson hit Dr. Lawrence in the head several times with the butt of the rifle and Cervi stabbed him in the neck. Thereafter, the pair departed in Dr. Lawrence's car. Dr. Lawrence managed to free himself and get to the highway, from whence he was taken to the hospital. He died the next day, but was able to identify Wilson and Cervi as his assailants prior to death. The two defendants were stopped for speeding while still driving Dr. Lawrence's vehicle in Iowa. A check of the license revealed that they were wanted for murder in Georgia, and they were incarcerated. The appellant waived extradition and was returned to Georgia.

2. Enumerations of error 4, 5, 6, 7 and 22 contend that the trial court erred in overruling the appellant's motion to suppress his confession, the physical evidence recovered from the victim's car, and oral admissions made while on the return flight to Georgia.

The appellant contends that his in-custody confession should be suppressed because of the following events: After the appellant's arrest about 9:30 a. m., he was taken before a magistrate at 4:00 p. m. for a probable-cause hearing, as required by Iowa law. He was advised of his right to counsel and asked if he wished to have counsel appointed, to which he answered in the affirmative. The hearing was continued until 10:00 a. m. the following day. During the night, two Georgia Bureau of Investigation agents and the district attorney from Toombs Circuit arrived in Iowa. They were not informed of the request for representation, and they were allowed to interview the defendants. Each GBI agent was accompanied by an Iowa agent, while the district attorney conferred with his Iowa counterpart. Each of the defendants signed a written acknowledgement of his Miranda rights and waiver of counsel prior to interrogation and making a written confession. Meanwhile, appointed counsel had arrived, requested to see his clients, and was told to wait a few minutes and they would be made available.

The question thus presented is whether the request for counsel at the Iowa probable-cause hearing precluded interrogation of the appellant by the Georgia investigators without notifying appointed counsel and allowing him to be present.

The appellant was arrested on the basis of a Georgia warrant charging murder, and the purpose of the hearing was to determine if sufficient cause existed to hold the appellant for extradition to Georgia. The appellant had not been interrogated by the Iowa authorities, who were acting in a custodial capacity pending extradition. Nor did the appellant invoke his right to have counsel present during custodial interrogation. Furthermore, the Georgia authorities were completely unaware of the appointment of counsel. Therefore, we hold that, under the facts of this case, the appointment of counsel by one jurisdiction for the limited purpose of representation at a probable-cause hearing and extradition proceeding, did not prevent the appellant from giving an informed waiver of counsel prior to interrogation by the requesting state. The actions of the Georgia authorities were not a violation of the right to counsel as set forth by the U. S. Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

There was no evidence of any threats, intimidations, promises or inducements. The trial court did not err in overruling the appellant's motion to suppress his confession The appellant's remaining contention, that the physical evidence obtained from the victim's vehicle should be suppressed, likewise has no merit, since the appellant has no standing to complain of the search of property belonging to another. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Marshall v. State, 153 Ga.App. 198, 264 S.E.2d 718 (1980); Meyer v. State, 150 Ga.App. 613, 258 S.E.2d 217 (1979).

and allowing it in evidence. Nor did the trial court err in failing to suppress statements made by the appellant to officers as he was being transported back to this state as the appellant had the benefit of his Miranda warnings. Willis v. State, 243 Ga. 185, 253 S.E.2d 70 (1979).

3. Enumerations of error 8, 9, 10 and 11 contend that the trial court erred in denying the appellant's motion for change of venue because of pre-trial publicity and financial burden on the taxpayers of the county. In addition, it is argued that because of disqualifications under Witherspoon, the appellant was denied a cross-section of the community from which to choose a jury.

The appellant's only argument at the hearing on the motion for change of venue was that, because 89 black veniremen were disqualified under Witherspoon, leaving only nine blacks on the jury panels put upon the appellant, the panel did not represent a cross-section of the community. This argument is without merit. Brown v. State, 247 Ga. 298(3), 275 S.E.2d 52 (1981). Of the first panel put upon the appellant, four were black, and the appellant struck the remaining three after the state had previously struck one, leaving the appellant with all white jurors.

There was no evidence presented as to excessive publicity, and a review of the voir dire shows that no prospective juror had formed a fixed opinion as to guilt or innocence of the appellant or was excused for prejudice. Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981).

The appellant having shown no error in the denial of the motion for change of venue, we find no merit in these enumerations of error. Brooks v. State, 244 Ga. 574(1), 261 S.E.2d 379 (1979).

Likewise, the appellant's enumerations of error 13, 14 and 15, raising the issue of disqualification of jurors under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), have no merit. Each juror stated unequivocally that he was unalterably opposed to the death penalty. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, supra; Dampier v. State, 245 Ga. 427(7), 265 S.E.2d 565 (1980), and Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979).

In his sixteenth enumeration of error, the appellant complains of irregularities in the giving of the oath to the jurors prior to voir dire. The record is silent as to the type of oath given. However, the appellant did not object to the form of the oath nor does he cite any harm arising from any irregular administration of the oath. This enumeration of error is without merit. Gilreath v. State, 247 Ga. 814(3), 279 S.E.2d 650 (1981).

4. Enumerations of error 17, 18 and 19 contend that the trial court erred in restricting the appellant's right to a thorough and sifting cross-examination of two witnesses for the state.

The doctor who treated the victim prior to his death was testifying using his personal notes to refresh his memory. Defense counsel had been furnished a copy of the doctor's notes. Defense counsel then sought to cross-examine the doctor on specific material contained in hospital records of the victim's treatment. As to the hospital records, the doctor testified that he had not made them, did not know who had, and could not attest to their accuracy. The trial court then restricted counsel to the material in the records that had been prepared by the doctor. We find no error.

The other witness, a GBI agent, was being cross-examined about the return flight from Iowa, specifically as to the seating arrangement. Counsel sought to use a piece of poster board to diagram the seating 5. Enumerations of error 20 and 21 contend that the trial court erred in allowing hearsay evidence over objection and in refusing to allow cross-examination of this witness about another witness' testimony at the preliminary hearing. The agent testified that he received information from the victim that caused him to go to Charleston, South Carolina, to investigate further. This testimony was admissible under Code § 38-302 to explain conduct. Todd v. State, 200 Ga. 582, 37 S.E.2d 779 (1946).

arrangement and to display to the jury. The state objected to the diagram's being displayed to the jury unless it...